COURT FILE NO.: FC-12-1249-4
DATE: 2022/07/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Douglas Swinton, Applicant
-and-
Audra Lea Minifie, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant, Self-Represented
Elise Hallewick, for the Respondent (Julie Gravelle agent appeared)
HEARD: July 14, 2022, by Video Conference
ENDORSEMENT
Overview
[1] The issues before me concern child support for the parties’ two children.
[2] The issues in this Application were set for final determination based on affidavit material, by the Endorsement of Audet J. dated December 2, 2020. The final hearing in this matter was heard on July 14, 2022.
[3] The parties are the parents of two children, now ages 23 and 21. The Applicant father commenced this Application on December 5, 2018, seeking adjustments to child support paid under the parties’ Separation Agreement, signed in 2011, as amended by their Amending Agreement signed on July 28, 2016.
[4] I am applying the Divorce Act to these proceedings. Neither party argued what legislation applies to their claims. The father sought relief in his Application under both the Divorce Act and the Family Law Act. The mother sought relief under the Divorce Act, although she is not pursuing her claim for spousal support. Given the parties were divorced in 2012, that this proceeding was commenced as a new Application under the Divorce Act, and that the parties withdrew their Motion to Change (under the Family Law Act) in 2016, I am applying the Divorce Act.
[5] For the reasons set out below, I find that the Respondent mother does not owe any further amounts to the Applicant father for child support payable to-date, and neither child continues to be eligible for child support.
Termination of Child Support
[6] Neither child continues to be eligible for child support because:
It is not contested that child support ended for H no later than May 1, 2021, when she completed her post-secondary schooling.
It is not contested that child support ended for J no later than his 23rd birthday in March 2022.
The Applicant’s Claim to Past Child Support
[7] I do not find that the Applicant father is owed amounts by the Respondent mother for past adjustments for child support, prior to when child support ended for each child. My reasons are set out below.
[8] There are several factors upon which the father argues he is entitled to additional child support going back to July 1, 2016, which is when the parties’ Amending Agreement last adjusted child support. He seeks orders that the mother owes him child support going back to July 1, 2016, totalling approximately $31,000.
[9] In her Answer, the mother seeks to have the father’s claims dismissed, and for child support for the period after the children turn 18 to be adjusted based on the children’s actual expenses, the children’s contribution to their expenses, and the parties’ respective incomes. The oldest child turned 18 in March of 2017. The youngest child turned 18 in August of 2018.
[10] At this point though, the mother has been frustrated by the father’s lack of disclosure, failure to provide undertakings made at questioning in 2019, failure to provide court material in accordance with the Family Law Rules and previous endorsements, and his failure to provide disclosure in support of his claims, despite repeated adjournments. She is simply asking the court to dismiss the Application and find that no further amounts are owed between the parties for child support.
[11] The mother’s position is that she does not wish to pursue her claims that she has overpaid child support because of the time and expense, and overall difficulty, in trying to get the father to abide by court rules and previous endorsements and provide proper disclosure.
[12] I agree with the mother’s position and agree that this is a fair, just and appropriate determination of child support given all of the circumstances between the parties.
Years 2016 and 2017
[13] I have considered the father’s position that he is entitled to be reimbursed child support that he says he overpaid in 2016 and 2017, based on the parties’ actual incomes in those years. The father claims he is entitled to $1,914 for the period from July 1, 2016, to December 31, 2016, and $4,932 for 2017.
[14] The parties’ 2016 Amending Agreement acknowledges that the child support amount was based on projected incomes and was to be adjusted when the parties exchanged income disclosure no later than April 30th in each year. But it is not contested that the father did not provide his income disclosure, nor raise the issue of adjusting child support, until January 31, 2018, when he argued that there was a change in J’s living situation that warranted a change to child support.
[15] I accept that the mother also did not provide her income information by the April 30th deadline but given the parties’ mutual obligation to provide income information, and that both parties were payors and recipients of child support, as well as the other factors set out below regarding the father’s conduct to-date, I do not find that it is just to change child support back to 2016 or 2017. I do not find that the father provided effective notice of his request to change child support until the winter of 2018, when he provided his income information for 2016. In determining this, I have also considered that in 2016, the mother was overcontributing to s.7 expenses because she was paying 40% of these expenses, when her proportionate income was only 35.6%. This overcontribution continued in 2018, 2019, and 2020.[^1]
[16] The father argued that he should be entitled to adjust the monthly child support without revisiting the proportionate sharing of s.7 expenses set out in the Amending Agreement. I disagree. Child support includes both the monthly amount and sharing of s.7 expenses. The review provisions in the Amending Agreement apply to child support, which includes s.7 expenses. This is consistent with the Child Support Guidelines and also consistent with the Disclosure obligations under the Amending Agreement, which included annual disclosure of information related to s.7 expenses.
[17] I have also considered that as of J turned 18 in March 2017. After March 2017, child support for J must be determined under s.3(2) of the Child Support Guidelines. The mother’s Answer in this proceeding specifically seeks this. But the father has not provided evidence in support of his claim to adjust child support that would allow me to determine child support under s.3(2) for J, as of March 2017 forward. The evidence before me is that J began to attend university as of September of 2017, continued to reside with the father, and earned $13,836 in 2018, and $20,998 in 2019. I do not have evidence of J’s income in 2017, when he turned 18, nor evidence of his income in other years. I do not have evidence of his expenses, nor his ability to contribute to those expenses through income, bursaries, loans, grants, tax credits, or other sources,
[18] I agree with the mother that the father’s conduct in these proceedings has been frustrating and wasteful. He has not provided evidence that is needed to support his claims. He has filed material late, that is incomplete, that is unsworn, and is repetitive. He has failed to provide responses to undertakings that he gave in his 2019 questioning. He is seeking to adjust child support based on items that he picks and chooses, while failing to provide disclosure so that the mother’s claims can be addressed.
[19] I do not find that there is any basis to adjust child support that was paid in 2016 and 2017.
Year 2018
[20] The father seeks additional child support of $4,427.57 for 2018.
[21] The father raises two main issues related to the child support paid in 2018. The first is when child support should be changed given a change in J’s living circumstances. The second is whether full table child support is payable for H as of September of 2018 when she begins attending college in Sudbury.
[22] It is not contested that, beginning on January 31, 2018, the parties were engaged in a review of child support because of the father’s position that J was, and would be, spending more than 60% of the time with the father. The parties agree that by at least the end of March 2018, J was primarily living with the father. The mother began to pay child support based on J primarily residing with the father as of April 1, 2018. The father, however, seeks child support based on this change back to January 1, 2018.
[23] I do not find that the father has established that he is entitled to a change in child support because of J’s living circumstances prior to April 1, 2018. I accept the mother’s evidence to the effect that J’s living situation evolved over the winter of 2018. I also do not accept the father’s evidence in support of his position, which is based on the mother’s lawyer’s email from March or July of 2018. The email from the mother’s lawyer put forward a comprehensive settlement proposal, which I find was part of without prejudice attempts to settle the matter. In addition, the father has picked selective pieces from that email while ignoring others, including, for example, the mother’s claim that the father underpaid child support in 2016 and 2017, including with respect to s.7 expenses.
[24] I do not find that the full table amount of child support is payable for H as of September 2018 when she moved to Sudbury to attend College. The parties’ Separation Agreement supports this finding, as it provides that child support changes when a child begins to live away from home to attend school. This is also consistent with the decision of the Ontario Court of Appeal in Lewi v Lewi 2006 CanLII 15446 (ON CA), [2006] O.J. No. 1847 (Ont.C.A.).
[25] H also turned 18 in August 2018, and the same comments apply to her situation as they do for J. After August 2018, child support for H must be determined under s.3(2) of the Child Support Guidelines. The mother’s Answer in this proceeding specifically seeks this. But the father has not provided evidence in support of his claim to adjust child support that would allow me to determine child support under s.3(2) for H, as of August 2018, forward.
[26] The evidence before me is that H attended College in Sudbury from September 2018, until April of 2021, and she earned $8,579 in 2018 and $15,535 in 2019. I do not have evidence of her income in 2020 or 2021. I do not have evidence of her expenses, or ability to contribute to those expenses through income, bursaries, loans, grants, tax credits, or other sources.
[27] The mother paid child support in 2018 based on J primarily residing with the father as of April 1, 2018, and H being away at school as of September 1, 2018. The mother’s evidence is also that she contributed to H’s schooling expenses and there is a reference to RESPs in the parties’ Separation Agreement. In the absence of evidence from the father related to a s.3(2) analysis for H regarding her expenses, and any alleged shortfall, taking into consideration her ability to contribute to her own expenses, there is no basis to find that any further child support is owed.
Years 2019 to 2022
[28] I dismiss the father’s claim to additional child support for the years 2019 to 2022 for the same reasons as set out above.
[29] The father claims additional child support of $4,761.56 in 2019 because he claims that the full table amount should be payable for H even though she was away at school. The mother paid child support in 2019 based on child support being payable for H for four months, during the summer. The evidence before me does not support additional amounts are owed. The father has not satisfied the court that table child support should be paid while H is away at school. H also earned $15,535 in 2019. In the absence of the evidence from the father related to a s.3(2) analysis for H regarding her expenses, and any alleged shortfall, taking into consideration her ability to contribute to her own expenses, there is no basis to find that any further child support is owed.
[30] In addition, if we were to adjust child support in 2019, we would also need to consider the child support that was paid for J in 2019, as this is part of the mother’s claims. In 2019, J earned $20,998, apparently from working full-time hours, but the mother continued to pay table child support for him. It appears to me that it is more likely that the mother overpaid child support in 2019.
[31] The father claims additional child support of $3,981.64 in 2020 because he claims that the full table amount should have been payable for H even though she was away at school. The mother paid child support in 2020 based on child support being payable for H for four months, during the summer. Even though the father’s evidence is that H returned from school for part of 2020 because of the pandemic, I do not find that any additional amounts of child support are payable in 2020 because the father has failed to provide evidence of H’s income (which was significant in other years), her expenses, and her ability to contribute to her expenses through income, bursaries, loans, grants, tax credits, or other sources.
[32] The mother stopped paying child support at the end of December 2020. The father’s position is that child support continued to be payable for H until the end of April 2021, and for J until he turned 23 in March 2022. But again, the father has not provided evidence to support such a finding, including, for example, by providing the children’s tax returns, expenses, and ability to contribute to their expenses through income, bursaries, loans, grants, tax credits, or other sources. There is the added factor for J that it is not contested he started university in the fall of 2017 but failed several of his courses. It appears that J was focusing his energies on his employment, rather than school. The mother had concerns that J’ educational plan was not reasonable. Her concerns are reasonable and warrant some response from the father to establish that J’s plan was reasonable – but none was produced. The evidence does not support a finding that additional child support is payable for these years.
Section 7 Expenses
[33] I do not find that the mother owes the father additional contributions to section 7 expenses related to his claim for contribution to H’s moving expenses to and from Sudbury.
[34] I accept the mother’s evidence that she was not consulted in advance with respect to these expenses, nor did she agree to them. Paragraph 5.5 of the parties’ Separation Agreement specifically provides that they are only required to contribute to s.7 expenses to which they agree in advance in writing, such agreement not to be unreasonably withheld. The mother’s evidence that she was not consulted in advance with respect to the moving expenses was not contested by the father.
[35] More importantly, I do not find that the moving expenses claimed by the father are proper s.7 expenses. They were not reasonably necessary.
[36] The father seeks that the mother be required to contribute $694.64 as 40% of moving expenses in August 2018, $272.92 as 40% of moving expenses in August 2019, and $161.30 as 40% of moving expenses in March 2020. The father did not provide any evidence that he incurred these expenses, what expenses make up these claims, or of his requests to the mother that she contribute. The mother’s evidence, which the father did not contest, is that the father’s “moving” expenses included multi-day hotel stays that were excessive, multi-day vehicle rentals that were excessive, personal meals, and miscellaneous supplies. This evidence supports that these expenses were incurred more as a personal trip for the father and H, rather than as necessary reasonable expenses related to her schooling. I agree with the mother that she should not be required to contribute to these expenses, having not been consulted about them in advance.
Material Before Me
[37] I have referred to there being many concerns with the father’s conduct in this proceeding. I will not detail all of the deficiencies in the father’s conduct, but highlight the most important, as these are factors in my determination of this matter. These include:
The father repeatedly failed to comply with the Family Law Rules. He served material late under the Rules, and not in compliance with the timelines set out in my endorsement of July 15, 2021. On this hearing, the father uploaded several documents to Caselines that he had not served or filed with the court, which were also late under the Rules and under my previous endorsement, were not sworn, and were improper. This is despite previous adjournments of this motion caused by the father being late with his material.
For example, this hearing was originally set for August 3, 2021, but was adjourned when, by July 13, 2021, the father had not served his material despite being requested to do so because the mother’s counsel would be away.
On July 15, 2021, I set timelines for material to be filed on this hearing. This required the father to serve and file his material no less than 60 days before the hearing date, giving the mother 30 days to respond, and then the father having 14 days to file any reply (proper reply only).
The father then scheduled the hearing for November 30, 2021, but that date was struck because of his failure to serve material.
The father then scheduled this hearing for June 9, 2022. That date was moved to July 14, 2022, due to a court administration issues. But even with this delay, the father did not serve and file his material on time. As of the date of this hearing, the only material filed with the court by the father for this hearing, aside from his original pleadings, was a Notice of Motion dated December 2, 2021, that stated the relief he sought was “still to be determined”.
Having not filed any material with the court, the father proceeded to upload documents directly to Caselines that were not sworn, were in the wrong format, and were repetitive. He filed documents as evidence that were not identified as exhibits and were not sworn. He filed an affidavit dated June 2, 2022, and an affidavit dated July 14, 2022, neither of which were sworn, and both of which were well past the time limits. He filed several Motion to Change documents using Form 15, which were also late, unsworn, and it is improper to bring a Motion to Change within an existing Application. Caselines is not the court file. Caselines is not a way to circumvent the rules, or directions made in previous endorsements. Yet the father attempted to do so.
The father did not contest the mother’s evidence that he has failed to provide his undertaking from his questioning in 2019. The outstanding undertakings are significant, and related to the children’s income and expenses, and the means, needs and other circumstances of each child and the parties necessary for a s.3(2) analysis. This is despite the mother serving him with her affidavit April 19, 2022, that clearly identifies his outstanding undertakings a significant concern.
[38] In order to finalize this matter, to deal with it justly (Rule 2), I accepted the father’s affidavit and Financial Statement dated June 2, 2022, sworn on the record before me on July 14, 2022, and the mother’s responding affidavit sworn July 6, 2022. Both parties agreed to me doing so.
[39] I refused to accept any of the other documents uploaded to Caselines and not filed with the court for the purpose of this hearing. In particular, the parties both provided copies of the pleadings through Caselines, but again the father included large volumes of attachments to the pleadings in what he uploaded, that were not sworn evidence and not admissible on this hearing.
[40] Accordingly, for the reasons set out above, I make the following orders:
Pursuant to the Divorce Act, the Respondent mother does not owe any further amounts to the Applicant father for child support payable to date for J, born March [redacted], 1999, or H, born August [redacted], 2000, and neither child continues to be eligible for child support.
All other relief in this proceeding is dismissed.
If the parties are unable to agree on the costs of this motion, the Respondent may serve and file cost submissions on or before July 29, 2022, at 4 pm. The Applicant may serve and file cost submissions on or before August 5, 2022, at 4 pm. The Respondent may serve and file a reply, if needed (proper reply only) on or before August 10, 2022, at 4 pm. Cost submissions of both parties shall be no more than three pages in length (except for reply submissions, limited to 2 pages), plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.
Justice P. MacEachern
Date: July 15, 2022
COURT FILE NO.: FC-12-1249-4
DATE: 2022/07/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Douglas Swinton, Applicant
-and-
Audra Lea Minifie, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant, Self-Represented
Elise Hallewick, for the Respondent (Julie Gravelle agent appeared)
ENDORSEMENT
Justice P. MacEachern
Released: July 15, 2022
[^1]: It is not contested that the parties’ incomes were:
father
mother
mother's share of s.7
2016
$ 188,033.00
$ 104,078.00
0.356
2017
$ 155,946.00
$ 102,546.00
0.397
2018
$ 178,399.00
$ 101,608.00
0.363
2019
$ 179,145.00
$ 101,333.00
0.361
2020
$ 193,115.00
$ 105,740.00
0.354
2021
$ 185,996.00
$ 112,262.00
0.376